Silly Accusations Against Judge Taylor

Judicial Watch, the group founded by legendary nutjob Larry Klayman whose goal appears to be to sue every human being in the western hemisphere by the year 2050, is making a big deal out of an alleged conflict of interest by Judge Taylor. Naturally, STACLU is jumping on board, as is much of the media. It's all a bunch of nonsense. Here's the accusation:

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a "recent grant" of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision.

"This potential conflict of interest merits serious investigation," said Judicial Watch President Tom Fitton. "If Judge Diggs Taylor failed to disclose this link to a plaintiff in a case before her court, it would certainly call into question her judgment."

But Judicial Watch links to the code of conduct for Federal judges and there is nothing in those rules that says this is a conflict of interest. If that was defined as a conflict of interest for a Federal judge, judges would be recusing themselves constantly in cases involving advocacy groups. Judges do not come to the bench without a history of involvement with causes they believe in, nor are they required to give them up when they do take the bench.

If you made every Federal judge recuse themselves because they are involved with an organization that gave a grant, it would be impossible to run the courts. Innumerable judges have ties not only to groups like the ACLU but to the Federalist Society, the Alliance Defense Fund, and other conservative groups as well. A conflict of interest occurs when a judge has a stake in the outcome, when they or someone they're close to would benefit if they ruled one way or the other.

But advocacy groups take part in a huge range of lawsuits, as plaintiffs, as legal counsel, or as amici. The fact that a judge is a member of a group with ties to an advocacy group does not mean there's a conflict of interest, nor does it mean they should recuse themselves, any more than Scalia or Thomas should recuse themselves if a case involves a fellow Federalist Society member, or than Roberts or Alito should recuse themselves in any case involving groups they've worked with in the past, or from cases involving the DOJ that they used to work for, or from cases involving the President that appointed them.

Orin Kerr is right in what he wrote at Volokh earlier:

This judgment seems pretty sensible to me, but I do take objection what some will take as the broader gist of the story as reported in the Times and elsewhere. To the extent that the story raises the question of whether Judge Taylor was biased in favor of the ACLU because of some kind of financial relationship with it, that suggestion strikes me as totally bogus. I don't think Judge Taylor wrote a good opinion, but I think it's very far-fetched and rather insulting to her to suggest that her opinion was influenced by some kind of actual conflict of interest.

This accusation is so weak that even Stephen Gillers, who seems to detect ethical problems by judges in the most ridiculous situations (this is the guy who claimed that Scalia had commited a "dubious ethical choice" by teaching a continuing education course at a Federalist Society convention), doesn't think it's a big deal.